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THEBNER v. MILLER

April 9, 1992

MICHAEL THEBNER, Petitioner, against DAVID L. MILLER, SUPERINTENDENT, WALLKILL CORRECTIONAL FACILITY, Respondent.


The opinion of the court was delivered by: LEONARD D. WEXLER

MEMORANDUM AND ORDER

 WEXLER, District Judge

 On February 11, 1989, Michael Thebner ("petitioner") was convicted of Manslaughter in the Second Degree pursuant to New York Penal Law § 125.15[1], reckless manslaughter, and was subsequently sentenced to an indeterminate term of incarceration of five to fifteen years. Petitioner now seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254 on the following grounds: (1) his statements to the police were involuntary statements in violation of due process; (2) evidence obtained from his home was the product of an illegal search and seizure; (3) the evidence presented at trial failed to prove petitioner's guilt beyond a reasonable doubt; and (4) the sentence imposed on petitioner was harsh and excessive, constituting cruel and unusual punishment under the Eighth Amendment. For the reasons discussed below, the petition is denied.

 I. BACKGROUND

 The following material facts are not contested by the parties. At approximately 3:00 p.m. on January 26, 1987, during the course of an argument, petitioner, who was then seventeen years old, took a loaded .22 caliber rifle from a gun rack in his bedroom and, from close range, killed his seventeen year old girlfriend, Christine Iwanicki, with a single shot. The shooting occurred in petitioner's bedroom, in his parents' house in Mt. Sinai, New York.

 Police officer Litsch received radio notification of the shooting at 3:16 p.m., arrived at the Thebners' house shortly thereafter, and secured the scene of the shooting.

 At about 3:40 p.m. Detectives Olin and Niegocki arrived at the Thebner's house. Detective Olin took statements from petitioner's father and brother and Detective Niegocki went to speak to petitioner. Niegocki found petitioner outside the house in a police car being comforted by Kerry Evrard, a Mt. Sinai volunteer fireperson who had suggested that he sit in the car in order to stay warm. Niegocki asked Evrard to leave the car so that he could talk to petitioner, but when he found that petitioner was too upset, he asked Evrard to return and try to calm him. A few minutes later, Niegocki returned to the car, orally advised petitioner of his Miranda rights, and began to interview him. Based on petitioner's responses, at approximately 4:10 p.m. Niegocki read him his Miranda rights again, this time from a printed form which petitioner initialed. They then began working on a written statement.

 At approximately 4:30 p.m., Homicide Detectives Rein and Anderson arrived at the scene. They found petitioner's rifle with five bullets in it lying on the floor, a spent shell casing on the couch, and a live shell behind the couch. They also found an expended bullet on the floor and several boxes of bullets in the gun rack.

 At about 4:50 p.m. petitioner and Niegocki were still working on the first page of his written statement. At Detective Rein's suggestion, petitioner agreed to go the Sixth Precinct to take a Firearms Discharge Residue Test and Detective Rein informed petitioner's father as to where his son was going.

 Petitioner arrived at the Sixth Precinct at approximately 5:30 p.m. and the test was completed by approximately 6:50 p.m. Between 5:30 p.m. and 7:30 p.m., petitioner sat with Detective Blasko in a lieutenant's office at the precinct. Petitioner was quiet, made no requests, and the office door remained open. From 7:30 p.m. to 8:15 p.m. petitioner was alone in the office.

 At 8:15 p.m. Detectives Anderson and Misegades entered the office for the first time, introduced themselves to petitioner, and read him his Miranda rights. Petitioner signed and dated a waiver and then made oral statements to Detective Misegades concerning the day's events. At approximately 9:00 p.m., Detective Rein entered the office, told petitioner that his story did not fit with the physical evidence found in his bedroom, and questioned him regarding his position vis-a-vis Iwanicki at the time of the shooting. Detective Anderson then asked additional questions and petitioner, after again being advised of his Miranda rights, made a second written statement. This statement was completed by 10:50 p.m. and the detectives returned petitioner to his home by 11:30 p.m.

 In his initial oral and written statements, petitioner maintained that the shooting was an accident. He stated that he took the rifle from the rack, that he threatened to use it to kill himself, that he ejected a live round from the chamber, that he did not realize that the rifle was loaded, that he approached Iwanicki with the rifle pointed away from her, that Iwanicki grabbed the barrel of the rifle, and that the rifle accidently discharged during the ensuing struggle.

 However, in his later oral and written statements, petitioner stated that he had owned the rifle for four years, that he had shot it approximately fifty times, that he had a hunting license and had taken a firearms safety course, that he knew the gun was loaded, and that he told Iwanicki, "I'll kill you" as he poked her in the chest with the rifle. He also stated that after he poked her with the rifle, Iwanicki slid off the couch in which they were sitting and when she rose, he pulled the trigger. He insisted, however, that he did this in order to scare her and that he had hoped that another live round would not chamber when he ejected one live round.

 Information regarding the shooting was presented to a Suffolk County Grand Jury on February 17-18, 1987. Petitioner was indicted under § 125.15[1], in that he "recklessly caused the death of ...


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